1. "Establishment Clause:" In response to Reply # 0
Amendment I - Freedom of Religion, Press, Expression. Ratified 12/15/1791.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Further expounded by T. Jefferson: Thomas Jefferson wrote a letter to the Danbury Baptist Association in 1802 to answer a letter from them, asking why he would not proclaim national days of fasting and thanksiving, as had been done by Washington and Adams before him. The letter contains the phrase "wall of separation between church and state," which lead to the short-hand for the Establishment Clause that we use today: "Separation of church and state."
The letter was the subject of intense scrutiny by Jefferson, and he consulted a couple of New England politicians to assure that his words would not offend while still conveying his message: it was not the place of the Congress or the Executive to do anything that might be misconstrued as the establishment of religion.
Note: The bracketed section in the second paragraph had been blocked off for deletion, though it was not actually deleted in his draft of the letter. It is included here for completeness. Reflecting upon Jefferson's knowledge that his letter was far from a mere personal correspondence, he deleted the block, he says in the margin, to avoid offending members of his party in the eastern states.
This is a transcript of the letter as stored online at the Library of Congress, and reflects Jefferson's spelling and punctuation. "Mr. President
To mess? Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson a committee of the Danbury Baptist association in the state of Connecticut.
The affectionate sentiments of esteem & approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. my duties dictate a faithful & zealous pursuit of the interests of my constituents, and in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more & more pleasing.
Believing with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.
I reciprocate your kind prayers for the protection and blessing of the common Father and creator of man, and tender you for yourselves and your religious association, assurances of my high respect & esteem.
2. "More on its legal interpretations:" In response to Reply # 0 Wed Aug-27-03 12:24 PM
Part I Is there really a constitutional principle of separation of church and state? The words, "separation of church and state," do not appear anywhere in the Constitution. Is such a constitutional principle embodied in the constitution anywhere? In recent times some have claimed that separation of church and state was something "invented" by the Supreme Court in the late 1940's, or, "created" by Liberals in the 1960's.
We offer the following in evidence to support the claim that yes, such a constitutional principle does exist, and such a principle was embodied in the Constitution in 1787 and reinforced by amendment in 1789. What is provided here is not all that is available. There was a good bit of additional material that could have been added to what was provided, especially during the time frame 1810-1830, when repeatedly the delivery of mail, and Post Offices being required to be open, by law, for a period of time on Sundays, was a source of conflict between religious conservatives/traditionalists and the new government.
Because there is so much of that particular material, only a very small amount of it has been provided here. Cites of additional material on this particular subject can be provided to anyone who leaves a email message asking for such information.
FIRST FEDERAL CONGRESS, In the House of Representatives.
Representative Thomas Tucker on Church and State
Thomas Tucker of South Carolina made a revealing statement about his beliefs concerning church/state separation toward the end of the first session of the first Congress to meet under the Constitution. Mr. Tucker's comments were occasioned by a proposal from Representative Boudinot of New Jersey to ask the President to proclaim a day of thanksgiving in honor of Congress' completion of its first session. The following is taken from the Annals of congress, Vol 1, 1789, pp. 914-15 (entry for Friday, September 25).
Mr. BOUDINOT (a Representative from the State of New Jersey) said, he could not think of letting the session pass over without offering an opportunity to all citizens of the United States of joining with one voice, in returning to Almighty God their sincere thanks for the many blessings he had poured down upon them. With that view, therefore, he would move the following resolution:
RESOLVED, That a joint committee of both Houses be directed to wait upon the President of the United States, to request that he would recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging, with grateful hearts, that many signal favors of almighty God, especially by affording them the opportunity peaceably to establish a Constitution of government for their safety and happiness.
Mr. BURKE, a Representative from South Carolina said he did not like this mimicking of European customs, where they make a mere mockery of thanksgivings. Two parties at war frequently sung TE DEUM for the same event though for one it was a victory, and to the other a defeat.
Mr. TUCKER, a Representative from the State of South Carolina, thought the House had no business to interfere in a matter which did not concern them. Why should the president direct the people to do what, perhaps, they have no mind to do? They may not be inclined to return thanks for a constitution until they have experienced that it promotes their safety and happiness. We do not yet know but they may have reason to be dissatisfied with the effects it has already produced; BUT WHETHER THIS BE SO OR NOT, IT IS A BUSINESS WITH WHICH CONGRESS HAVE NOTHING TO DO, IT IS A RELIGIOUS MATTER, AND, AS SUCH IS PROSCRIBED TO US. . If a day of thanksgiving must take place, let it be done by the authority of the several states; they know best what reason their constituents have to be with the establishment of this Constitution.
Mr. SHERMAN justified the practice of thanksgiving, on any signal event, not only as a laudable one in itself, but as warranted by a number of precedents in HOLY WRIT: for instance the solemn thanksgivings and rejoicings which took place in the time of Solomon, after the building of the temple, was a case in point. This example he thought, worthy of Christian imitation on the present occasion; and he would agree with the gentleman who moved the resolution.
Mr. BOUDINOT quoted further precedents from the practice of the late Congress; and hoped the motion would meet a ready acquiescence. The question was not put on the resolution, and was carried in the affirmative: and Messers. Boudinot, Sherman, and Sylvester, were appointed a committee on the part of the House.
Source of information:
The Debates and Proceedings in the Congress of the United States (Annals of Congress) September 25, 1789, Vol. I, Joseph Gales, published by Gales and Seaton, Washington, 1834, pp 914-15)
At the time of Rep. Tucker's comments, The amendments to the Constitution, with its religious clauses, had been passed and was ready to be sent to the states for debate and ratification or rejection. The religion clauses would not become a part of the laws of this nation for another two years. Even though he lost the vote that day, Tucker was reminding his fellow Representatives that they were prohibited by the Constitution from involvement with matters concerning religion, and Tucker's acknowledgment of the principle of separation of church and state in Sept 1789 in the First Federal Congress became a part of the official record of that Congress. No mention is found of what the vote was or whom voted for or against. However the very next issue discussed was one concerning Invalid Pensioners, and the vote taken on what that was about showed who was present, 50 members, who voted for and who voted against and the total of the vote, 28 to pass, 22 against that issue. It is interesting that no such tally is shown for the Thanksgiving issue. Only a simple majority was needed, so we have no idea how many voted who voted and who voted which way.)
This was George Washington's response when asked why there were no mentions of, nor requirements pertaining to religion or Christianity included in the Constitution:
To the Ministers and Ruling Elders delegated to represent the churches in Massachusetts and New Hampshire, which compose the First Presbytery of the Eastward.
The tribute of thanksgiving which you offer to the gracious Father of lights, for his inspiration of our public councils with wisdom and firmness to complete the national Constitution, is worthy of men who, devoted to the pious purposes of religion, desire their accomplishment by such means as advance the temporal happiness of mankind. And here, I am persuaded, you will permit me to observe, that the path of true piety is so plain as to require but little Political attention. To this consideration we ought to ascribe the absence of any regulation respecting religion from the Magna Charta of our country.
To the guidance of the ministers of the gospel this important object is, perhaps, more properly committed. It will be your care to instruct the ignorant, to reclaim the devious; and in the progress of morality and science, to which our government will give every furtherance, we may expect confidently, the advancement of true religion and the completion of happiness. I pray the munificent rewarder of every virtue, that your agency in this good work may receive its compensation here and hereafter.
Excerpt from a letter written by G. Washington, October 1789. George Washington & Religion, By Paul F. Boller, Jr.. Southern Methodist University Press, Dallas, 1962, pp 180-181
(Unless otherwise indicated originals or original copies of all the George Washington letters can be found in The Papers of George Washington, Library of Congress, with the proper volume and page number following each excerpted letter: i.e., Papers, CCCXXXIV, 80.)
Alexander Hamilton (1757-1804), Secretary of the Treasury cites one of the reasons for a separation of Church and State in his well-known report on manufactures submitted in obedience to an order of the House of Representatives of January 15, 1790 (excerpted here),
January 15, 1790
IV As to the promoting of emigration from foreign countries. Men reluctantly quit one course of occupation and livelihood for another, unless invited to it by very apparent and proximate advantages. Many, who would go from one country to another, if they had a prospect of continuing, with more benefit, the callings to which they have been educated, will often not be tempted to change their situation by the hope of doing better in some other way. Manufacturers, who (listening to the powerful invitations of a better price for their fabrics, or their labour, of greater cheapness of provisions and raw materials, of an exemption from the chief part of the taxes, burdens and restraints, which they endure in the old world, of greater personal independence and consequence, under the operation of a more equal government, and of, what is far more precious than mere religious toleration, a perfect equality of religious privileges) would probably beck from Europe to the United States to pursue their own trades or professions, if they were once made sensible of the advantages they would enjoy, and were inspired with an assurance of encouragement and employment . . .
Source of information:
American Museum, XI, 10 (January 1792). Church and State in the United States, Volume I, Anson Phelps Stokes, D.D., LL. D., Harper & Brothers, New York, (1950) pp 276).
Madison's interest in preserving the separation between Church and State led, as we shall see later, to his having some misgivings regarding Federal Thanksgiving Day proclamations. (294) It also led to a very interesting debate in the House of Representatives, February 2, 1790, when the question of the Federal census was under consideration. The bill, as reported, provided for the enumeration of farmers, mechanics, and other groups, but did not include the learned professions. Theodore Sedgwick of Massachusetts (1746-1813) suggested that it should "specify every class of citizens, into which the community was divided, in order to ascertain the actual state of the society." Mr. Madison, in his reply, said:
FEBRUARY 2, 1790
HOUSE OF REPRESENTATIVES
The gentleman from Massachusetts has asked, why the learned professions were not included? I have no objection to giving a column to the general body. I think the work would be rendered more complete by the addition, and if the decision of such a motion turned upon my voice, they shall be added. But it may nevertheless be observed, that in such a character they can never be objects of legislative attention or cognizance. As to those who are employed in teaching and inculcating the duties of religion, there may be some indelicacy in singling them out, as the General Government is proscribed from interfering, in any manner whatever, in matters respecting religion; and it may be thought to do this, in ascertaining who, and who are not ministers of the Gospel. Conceiving the extension of the plan to be useful however, and not difficult, I hope it may meet the ready concurrence of this House. (295)
Here, as in the case of the Thanksgiving Day proclamations, he had some question as to the advisability of including a reference to ministers of religion in the census because of his strong belief in the entire separation of Church and State. He was no extremist in such matters if the fundamental principles of separation were observed, and his sense of what was fitting led him to see that the arguments in favor of both actions probably outweighed those against them. The case of chaplaincies to be supported from public funds seemed to him more serious and he opposed their appointment. His reasons were stated at some length in an essay on the subject first printed only a generation ago. He asked the question, "is the appointment of chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom" Madison made it clear that his opposition to the chaplaincy, whether in Congress or in the Army and Navy, was not to having services for these groups but to their being conducted as a function of government and paid for by public funds. Similarly, he opposed the incorporation by the Federal government of religious institutions, believing that such action would tend to break down the "wall of separation" between Church and State. He sent special messages to Congress vetoing proposals for incorporating the Episcopal Church in Georgetown near Washington, and also for setting apart land in Mississippi territory for a Baptist congregation. (297)
(294) The Writings of James Madison (Hunt Ed.) XX 9, (2)
(295) Debates and Proceedings of the Congress of the United States (Washington 1834) I, 1106-1108 Joseph Gales Sr.
(296) Harper's Magazine March 1914 (297) XXII, 3, (4)
Source of information:
Church and State in the United States Vol. I Anson Phelps Stokes pages 346-347 Harper & Brothers New York, (1950)
After the adoption of the Constitution, Congress continued to enact legislation which cleared away loose ends in many areas of life, including jurisprudence. The Act of Congress of April 30, 1790 entitled "An act for the punishment of certain crimes against the U.S." dealt with one such. In Section 3 of Chapter VII. Religious Freedom After 1787 of his book Church and State in the United States, Anson Phelps Stokes comments on:
"The Abolition of 'Benefit of Clergy' by Congress (1790)"
In colonial days most of the colonies gave certain special legal rights to clergymen, including that of a trial before an ecclesiastical court in many cases where laymen would have to appear before a civil court. Such cases, when exempting a clergyman from criminal process, are generally referred to by a term common in the Middle Ages, "benefit of clergy." This was abolished, as far as proceedings in Federal courts were concerned, by the Act of Congress of April 30, 1794 entitled "An act for the punishment of certain crimes against the U.S." Section 31 of that act provided "That the benefit of clergy shall not be used or allowed, upon conviction of any crime, for which, by any statute of the United States, the punishment is or shall be declared to be death." This action set a Precedent which virtually removed this ancient form of clerical privilege from use in Federal jurisprudence. The Act of 1790 was carried into the revised statutes, where it reads: "The benefit of Clergy shall not be used or allowed upon conviction of any crime for which punishment is or shall be declared to be death. (25) Although the section was repealed in the criminal code of 1909, this is only a technicality, as the Senate report on the criminal code indicates that it was merely "omitted as obsolete." The omission has become so well established that it no longer needs to be stated. (26) The Act of Congress of 1790 was and is a direct evidence of the desire of the founders of the government to carry out their ideals of Church and State separation.
Reminiscences of the old custom, however, remained for a short time in certain states. For instance, in North Carolina it was specifically recognized by law as late as 1837. (27) AS late as 1844, a criminal defendant was denied benefit of clergy only because he had 'received his clergy' on three previous occasions. (28)
The following are Mr. Stokes' footnotes:
(25) American Devotion, E, Stacy Mahtney, 3rd edition, COLUMBUS, OHIO (1940) op.cit.p 79.
(26) The Records of the Federal Convention of 1787, 3 Volumes New Haven 1911, Revised edition 4 Volumes New Haven, 1937 by Max Farrand, op. cit. p 297.
(27) VIII, 2.
(28) VIII, 5
Source of information:
Church and State in the United States Vol. I Anson Phelps Stokes page 493. Harper & Brothers New York, (1950).
3. "James Madison on the idea:" In response to Reply # 0
James Madison wrote frequently about religious freedom and its corollary, the separation of church and state. What follows are some of Madison’s best quotations on the subject
Total Separation " he number, the industry, and the morality of the Priesthood, & the devotion of the people have been manifestly increased by the total separation of the Church from the State." – Letter to Robert Walsh, March 2, 1819
Three Pence Only " t is proper to take alarm at the first experiment on our liberties....Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?" – From the "Memorial and Remonstrance," 1785
Disproving The Old Error " The experience of the United States is a happy disproof of the error so long rooted in the unenlightened minds of well-meaning Christians, as well as in the corrupt hearts of persecuting usurpers, that without legal incorporation of religious and civil polity, neither could be supported. A mutual independence is found most friendly to practical Religion, to social harmony, and to political prosperity." – Letter to F.L. Schaeffer, Dec. 3, 1821
Ye States Of America! " Ye States of America, which retain in your Constitution or Codes, any aberration from the sacred principle of religious liberty, by giving to Caesar what belongs to God, or joining together what God has put asunder, hasten to revise & purify your systems, and make the example of your Country as pure & compleat, in what relates to the freedom of the mind and its allegiance to its maker, as in what belongs to the legitimate objects of political & civil institutions. Strongly guarded as is the separation between Religion & Govt. in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history." –" Detached Memoranda," date of authorship unknown, estimated between 1817 and 1832
Teaching The World " We are teaching the world the great truth that Govts. do better without Kings & Nobles than with them. The merit will be doubled by the other lesson that Religion flourishes in greater purity, without than with the aid of Govt." – Letter to Edward Livingston, July 10, 1822
The Worst Of Government " In the Papal System, Government and Religion are in a manner consolidated, & that is found to be the worst of Govts. In most of the Govts. of the old world, the legal establishment of a particular religion and without or with very little toleration of others makes a part of the Political and Civil organization and there are few of the most enlightened judges who will maintain that the system has been favorable either to Religion or to Govt."
– Letter to Jasper Adams, 1832-1833 (date uncertain)
Freedom For Every Sect " Having ever regarded the freedom of religious opinion & worship as equally belonging to every sect, & the secure enjoyment of it as the best human provision for bringing all either into the same way of thinking, or into that mutual charity which is the only substitute, I observe with pleasure the view you give of the spirit in which your Sect partake of the blessings offered by our Govt. and Laws." – Letter to Mordecai Noah, May 15, 1818
No Intermeddling With Religion " There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it, would be a most flagrant usurpation. I can appeal to my uniform conduct on this subject, that I have warmly supported religious freedom." –Journal excerpt, June 12, 1788
Forbidding Everything Like An Establishment “The Constitution of the U.S. forbids everything like an establishment of a national religion." –" Detached Memoranda"
Torrents Of Blood " Torrents of blood have been spilt in the old world, by vain attempts of the secular arm, to extinguish Religious discord, by proscribing all difference in Religious opinion. Time has at length revealed the true remedy. Every relaxation of narrow and rigorous policy, wherever it has been tried, has been found to assuage the disease." –" Memorial and Remonstrance"
Equality Of Rights For Sects " Among the features peculiar to the Political system of the United States, is the perfect equality of rights which it secures to every religious Sect. And it is particularly pleasing to observe in the good citizenship of such as have been most distrusted and oppressed elsewhere, a happy illustration of the safety and success of this experiment of a just and benignant policy. Equal law protecting equal rights, are found as they ought to be presumed, the best guarantee of loyalty and love of country; as well as best calculated to cherish that mutual respect and good will among Citizens of every religious denomination which are necessary to social harmony and most favorable to the advancement of truth." -Letter to Jacob de la Motta, August 1820
Religion Without The Aid Of Law " The settled opinion here is that religion is essentially distinct from Civil Govt. and exempt from its cognizance; that a connexion between them is injurious to both; that there are causes in the human breast, which ensure the perpetuity of religion without the aid of the law; that rival sects, with equal rights, exercise mutual censorships in favor of good morals; that if new sects arise with absurd opinions or overheated maginations, the proper remedies lie in time, forbearance and example; that a legal establishment of religion without a toleration could not be thought of, and with toleration, is no security for public quiet & harmony, but rather a source of discord & animosity; and finally that these opinions are supported by experience, which has shewn that every relaxation of the alliance between Law & religion, from the partial example of Holland, to its consummation in Pennsylvania Delaware N.J. has been found as safe in practice as it is sounds in theory. Prior to the Revolution, the Episcopal Church was established by law in this State. On the Declaration of independence it was left with all other sects, to a self-support. And no doubt exists that there is much more of religion among now than there ever was before the change; and particularly in the Sect which enjoyed the legal patronage. This proves rather more than, that the law is not necessary to the support of religion." - Letter to Edward Everett, March 19, 1823
No Congressional Chaplains " Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? In strictness the answer on both points must be in the negative. The Constitution of the U.S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation." -"Detached Memoranda"
4. "A Constitution Scholar's Legal View:" In response to Reply # 0
"The remaining part of the clause declares, that 'no religious test shall ever be required, as a qualification to any office or public trust, under the United States.' This clause is not introduced merely for the purpose of satisfying the scruples of many respectable persons, who feel an invincible repugnance to any test or affirmation. It had a higher object; to cut off for ever every pretence of any alliance between church and state in the national government".
Source of Material:
Commentaries on the Constitution of the United States by Joseph Story Vol III, Page 705-707. Da Capo Press Reprints in American Constitutional and Legal History series, Da Capo Press NY 19700. Joseph Story's Commentaries were originally written in 1833)Vol. III, by Joseph Story, page 705.
5. "A religious leader's thoughts:" In response to Reply # 0
SEPTEMBER 17, 1856
"The manifest object of the men who framed the institutions of this country, was to have a State without religion, and a Church without politics -- that is to say, they meant that one should never be: used as an engine for any purpose of the other, and that no man's rights in one should be tested by his opinions about the other. As the Church takes no note of men's political differences, so the State looks with equal eye on all the modes of religious faith. The Church may give her preferment to a Tory, and the State may be served by a heretic. Our fathers seem to have been perfectly sincere in their belief that the members of the Church would be more patriotic, and the citizens of the State more religions, by keeping their respective functions entirely separate. For that reason they built up a wall of complete and perfect partition between the two."
Source of Information:
"Religious liberty," an address to the Phrenakosmian Society of Pennsylvania College, Delivered at the Annual Commencement, 17 September 1856, U.S. Attorney General Jeremiah S. Black, Essays and Speeches of Jeremiah S. Black (New York: D Appleton, 1885), 53. "Sowing Useful Truths and Principles: The Danbury Baptists, Thomas Jefferson and the "Wall of Separation", By Daniel L. Dreisbach, Journal Of Church and State, Volume 39, Summer 1997, Number 3, p 492.
6. "And one more note:" In response to Reply # 0 Wed Aug-27-03 12:34 PM
1871 Treatise on the Constitutional Limitations Which Rest upon the Legislative Powers of the States of the American Union Chapter XIII Of Religious Liberty Those things which are not lawful under any of the American constitutions may be stated thus:---
1. Any law respecting an establishment of religion. The legislatures have not been left liberty to effect a union of Church and State, or to establish preferences by law in favor of any one religions persuasions or mode of worship. There is not complete religious liberty where any one sect is favored by the state and given an advantage by law over other sects. Whatever establishes a distinction against one clam or sect is, to the extent to which the distinction operates unfavorably, a persecution; and if based on religious grounds, a religious persecution. It is not mere toleration which is established in our system, but religions equality.
2. Compulsory support, by taxation or otherwise, of religions instruction. Not only is no one denomination to be favored at the expense of the rest, but all support of religious instruction must be entirely voluntary. It is not within the sphere of government to coerce it.
3. Compulsory attendance upon religions worship. Whoever is not led by choice or a sense of duty to attend upon the ordinances of religion is not to be compelled to do so by the State. It is the province of the State to enforce, so far as it may be found practicable, the obligations and duties which the citizen may be under or map owe to his fellow citizen or to society; but those which spring from the relations between himself and his maker are to be enforced by the admonitions of the conscience, and not by the penalties of human laws. Indeed, as all real worship must essentially and necessarily consist in the free-will offering of adoration and gratitude by the creature to the Creator, human laws me obviously inadequate to incite or compel those internal and voluntary emotions which shall induce it, and human penalties at most could only enforce the observance of idle ceremonies; which, when unwillingly performed, are alike valueless to the participants and devoid of all the elements of true worship.
4. Restraints upon the free exercise of religion according to the dictates of the conscience. No external authority is to place itself between the finite being and the Infinite when the former is seeking to render the homage that is due, and a mode which commends itself to his conscience and judgment as being suitable for him to render and acceptable to its object.
5. Restraints upon the expression of religious belief. An earnest believer usually regards it as his duty to propagate his opinions, and to bring others to his views. To deprive him of this right is to take from him the power to perform what he considers a most sacred obligation.
These are the prohibitions which in some form of words are to be found in the American Constitutions, and which secure freedom of conscience and of religious worship. No man in religious matters is to be subjected to the censorship of the State or of any public authority; and the State is not to inquire into or take notice of religious belief, when the citizen performs his duty to the State and to his fellows, and is guilty of no breach of public morals or public decorum.
Source of Information:
Treatise on the Constitutional Limitations Which Rest upon the Legislative Powers of the States of the American Union, By Thomas M. Cooley, LL.D., Second Edition, Little, Brown, and Company 1871, pp (467-478)
7. "The last one for now (although pertinent):" In response to Reply # 0
December Term 1872
Editor's Note: In most cases I do not include, quote or cite state court cases, not even state Supreme Court cases from the 1784-1947 time period. The reason being, those cases involved state laws, state constitutions, etc, and during that period of time, the concept of separation of church and state that was embodied in the Federal Constitution did not apply to the states. You will note that many of the authors, included in this study, of the written and or spoken word who did support some sort of connection, union, etc of religion and the state did cite and or quote state court cases to bolster their arguments. Especially court cases that supported claims that Christianity was part of the Common Law and that the Common Law was at the foundation of the laws of this nation. I did include such cites and quoting, but otherwise I have avoided state cases.
This Ohio case is an exception, and is an exception because, it does mention the national government, and it offers a different opinion regarding the status of Common law/Christianity., In short the opinion and decision of the court, while only binding on Ohio, did present an argument that spanned common themes raised by other that touched on both a state and the national level.
Supreme Court of Ohio.
December Term, 1872.
The Board of Education of the City of Cincinnati v. John D. Minor et al (1)
We are told that this word " religion " must mean " Christian religion," because " Christianity is a part of the *common law of this country," lying behind and above its Constitutions. Those who make this assertion can hardly be serious, and intend the real import of their language. If Christianity is a law of the State, like every other law, it must have a sanction. Adequate penalties must be provided to enforce obedience to all its requirements and precepts. No one seriously contends for any such doctrine in this country, or, I might almost say, in this age of the world. The only foundation -- rather, the only excuse -- for the proposition that Christianity is part of the law of this country, is the fact that it is a Christian country, and that its Constitutions and laws are made by a Christian people. And is not the very fact that those laws do not attempt to enforce Christianity, or to place it upon exceptional or vantage ground, itself a strong evidence that they are the laws of a Christian people, and that their religion is the best and purest of religions? It is strong evidence that their religion is indeed a religion " without partiality," and therefore a religion " without hypocrisy." True Christianity asks no aid from the sword of civil authority. It began without the sword, and wherever it has taken the sword, it has perished by the sword. To depend on civil authority for its enforcement is to acknowledge its own weakness, which it can never afford to do. It is able to fight its own battles. Its weapons are moral and spiritual, and not carnal. Armed with these, and these alone, it is not afraid nor " ashamed " to be compared with other religions, and to withstand them single-handed. And the very reason why it is not so afraid or " ashamed " is that it is not the power of man," but " the power of God," on which it depends. True Christianity never shields itself behind majorities. Nero, and the other persecuting Roman emperors, were amply supported by majorities; and yet the pure and peaceable religion of Christ in the end triumphed over them all; and it was only when it attempted, itself, to enforce religion by the arm of authority, that it began to wane. A form of religion that cannot live under equal and impartial laws ought to die, and sooner or later must die.
*Legal Christianity is a solecism, a contradiction of terms. When Christianity asks the aid of government beyond mere impartial protection, it denies itself. Its laws are divine, and not human. Its essential interests lie beyond the reach and range of human governments. United with government, religion never rises above the merest superstition; united with religion, government never rises above the merest despotism; and all history shows us that the more widely and completely they are separated, the better it is for both.
Religion is not -- much less is Christianity or any particular system of religion -- named in the preamble to the Constitution of the United States as one of the declared objects of government; nor is it mentioned in the clause in question, in our own Constitution, as being essential to anything beyond mere human government. Religion is " essential" to much more than human government. It is essential to man's spiritual interests, which rise infinitely above, and are to outlive, all human governments. It would have been easy to declare this great truth in the Constitution; but its framers would have been quite out of their proper sphere in making the declaration. They contented themselves with declaring that religion is essential to good government; providing for the protection of all in its enjoyment, each in his own way, and providing means for the diffusion of general knowledge among the people. The declaration is not that government is essential to good religion, but that religion is essential to good government. Both propositions are true, but they are true in quite different senses. Good government is essential to religion for the purpose declared elsewhere in the same section of the Constitution ; namely, for the purpose of mere protection. But religion, morality, and knowledge are essential to government, in the sense that they have the instrumentalities for producing and perfecting a good form of government. On the other hand, no government is at all adapted for producing, perfecting, or propagating a good religion. Religion, in its widest and best sense, has most, if not all, *the instrumentalities for producing the best form of government. Religion is the parent, and not the offspring, of good government. Its kingdom is to be first sought, and good government is one of those things which will be added thereto. True religion is the sun which gives to government all its true lights, while the latter merely acts upon religion by reflection. Properly speaking, there is no such thing as " religion of state." What we mean by that phrase is, the religion of some individual, or set of individuals, taught and enforced by the State. The State can have no religious opinions; and if it undertakes to enforce the teaching of such opinions, they must be the opinions of some natural person, or class of persons. If it embarks in this business, whose opinion shall it adopt? If it adopts the opinions of more than one man, or one class of men, to what extent may it group together conflicting opinions? or may it group together the opinions of all? And where this conflict exists, how thorough will the teaching be! Will it be exhaustive and exact, as it is in will elementary literature and in the sciences usually taught to children., and, if not, which of the doctrines or truths claimed by each will be blurred over, and which taught in preference to those in conflict? These are difficulties which we do not have to encounter when teaching the ordinary branches of learning. It is only when we come to teach what lies" beyond the scope of sense and reason "- what from its very nature can only be the object of faith--that we encounter these difficulties. Especially is this so when our pupils are children, to whom we are compelled to assume a dogmatical method and manner, and whose faith at last is more a faith in us than in anything else. Suppose the State should undertake to teach Christianity in the broad sense in which counsel apply the term, or the " religion of the Bible," so as also to include the Jewish faith,-- where would it begin how far would it go? and what points of disagreement would be omitted.
If it be true that our law enjoins the teaching of the *Christian religion in the schools, surely, then, all its teachers should be Christians. Were I such a teacher, while I should instruct the pupils that the Christian religion was true and all other religions false, I should tell them that the law itself was an unchristian law. One of my first lessons to the pupils would show it to be unchristian. That lesson would be: "Whatsoever ye would that men should do to you, do ye even so to them ; for this is the law and the prophets." I could not look the veriest infidel or heathen in the face, and say that such a law was just, or that it was a fair specimen of Christian republicanism. I should have to tell him that it was an outgrowth of false Christianity, and not one of the "lights" which Christians are commanded to shed upon an unbelieving world. I should feel bound to acknowledge to him, moreover, that it violates the spirit of our constitutional guaranties, and is a state religion in embryo; that if we have no right to tax him to support " worship," we have no right to tax him to support religious instructions; that to tax a man to put down his own religion is of the very essence of tyranny; that however small the tax, it is a first step in the direction of an " establishment of religion;" and I should add, that the first step in that direction is the fatal step, because it logically involves the last step.
But it will be asked, How can religion, in this general sense, be essential to good government? Is atheism, is the religion of Buddha, of Zoroaster, of Lao-tse, conducive to good government! Does not the best government require the best religion? Certainly the best government requires the best religion. It is the child of true religion, or of truth on the subject of religion, as well as on all other subjects. But the real question here is not, What is the best religion but, How shall this best religion be secured? I answer, It can best be secured by adopting the doctrine of this seventh section in our own bill of rights, and which I summarize in two words, by calling it the doctrine of "hands off." Let the State not only keep its own hands off; but let it also see to it that religious sects keep their hands off each *other. Let religious doctrines have a fair field, and a free, intellectual, moral, and spiritual conflict. The weakest --that is, the intellectually, morally, and spiritually weakest--will go to the wall, and the best will triumph in the end. This is the golden truth which it has taken the world eighteen centuries to learn, and which has at last solved the terrible enigma of " church and state." Among the many forms of stating this truth, as a principal of government, to my mind it is nowhere more fairly and beautifully set forth than in our own Constitution. Were it in my power, I would not alter a syllable of the form in which it is there put down. It is the true republican doctrine. It is simple and easily understood. It means a free conflict of opinions as to things divine; and it means masterly inactivity on the part of the State, except for the purpose of keeping the conflict free, and preventing the violation of private rights or of the public peace. Meantime, the State will impartially aid all parties in their struggles after religious truth, by providing means for the increase of general knowledge, which is the handmaid of good government, as well as of true religion and morality. It means that a man's right to his own religious convictions, and to impart them to his own children, and his and their right to engage, in conformity thereto, in harmless acts of worship toward the Almighty, are as sacred in the eye of the law as his rights of person or property, and that although in the minority, he shall be protected in the full and unrestricted enjoyment thereof. The "protection " guaranteed by the section in question, means protection to the minority. The majority can protect itself Constitutions are enacted for the very purpose of protecting the weak against the strong; the few against the many. As with individuals, so with governments, the most valuable truths are often discovered late in life; and when discovered, their simplicity and beauty make us wonder that we had not known them before. Such is the character and history of the truth here spoken of. At first sight it seems to lie deep; but on close examination, we find it to be only *a new phase or application of a doctrine with which true religion everywhere abounds. It is simply the doctrine of conquering an enemy by kindness. Let religious sects adopt it toward each other. If you desire people to fall in love with your religion, make it lovely. If you wish to put down a false religion, put it down by kindness, thus heaping coals of fire on its head. You cannot put it down by force; that has been tried. To make the attempt, is to put down your own religion, or to abandon it. Moral and spiritual conflicts cannot be profitably waged with carnal weapons. When so carried on, the enemy of truth and right is too apt to triumph. Even heathen writers have learned and taught this golden truth. Buddha says: " Let a man overcome anger by love, evil by good, the greedy by liberality, and the slanderer by a true and upright life." Christianity is full of this truth, and, as a moral code, might be said to rest upon it. It is in hoc signo, by the use of such weapons, that Christianity must rule, if it rules at all. We are all subject to prejudices, deeper and more fixed on the subject of religion than on any other. Each is, of course, unaware of his own prejudices. A change of circumstances often opens our eyes. No Protestant in Spain, and no Catholic in this country, will be found insisting that the government of his residence shall support and teach its own religion to the exclusion of all others, and tax all alike for its support. If it is right for one government to do so,then it is right for all. Were Christians in the minority here, I apprehend no such a policy would be thought of by them. This is the existing policy of most governments in the world. Christian countries, however, are fast departing from it--witness Italy, Prussia, Spain, England. The true doctrine on the subject is the doctrine of peaceful disagreement, of charitable forbearance, and perfect impartiality. Three men -- say, a Christian, an infidel, and a Jew--ought to be able to carry on a government for their common benefit, and yet leave the religious doctrines and worship of each unaffected thereby, otherwise than by fairly and impartially protecting each, and aiding each in his *searches after truth. If they are sensible and fair men, they will so carry on their government, and carry it on successfully, and for the benefit of all. If they are not sensible and fair men, they will be apt to quarrel about religion, and, in the end, have a bad government and bad religion, if they do not destroy both. Surely they could well and safely carry on any other business, as that of banking, without involving their religious opinions, or any acts of religious worship. Government is an organization for particular purposes. It is not almighty, and we are not to look to it for everything. The great bulk of human affairs and human interests is left by any free government to individual enterprise and individual action. Religion is eminently one of these interests, lying outside the true and legitimate province of government.
Counsel say that to withdraw all religious instruction from the schools would be to put them under the control of " infidel sects." This is by no means so. To teach the doctrines of infidelity, and thereby teach that Christianity is false, is one thing; and to give no instructions on the subject is quite another thing. The only fair and impartial method, where serious objection is made, is to let each sect give its own instructions, elsewhere than in the State schools, where of necessity all are to meet; and to put disputed doctrines of religion among other subjects of instruction, for there are many others, which can more conveniently, satisfactorily, and safely be taught elsewhere. Our charitable, punitive, and disciplinary institutions stand on an entirely different footing. There the State takes the place of the parent, and may well act the part of a parent or guardian in directing what religious instructions shall be given.
The principles here expressed are not new. They are the same, so far as applicable, enunciated by this court in Bloom v. Richards, 2 Ohio State, 3871 and in McGatrick v. Wason, 4 Ohio State, 566. They are as old as Madison, and were his favorite opinions. Madison, who had more to do with framing the Constitution of the United States than any other man, and *whose purity of life and orthodoxy of religious belief no one questions, himself says :
"Religion is not within the purview of human government." And again he says: "Religion is essentially distinct from human government, and a exempt from its cognizance. A connection between them is injurious to both. There are causes in the human breast which insure the perpetuity of religion without the aid of law.(2)
In his letter to Governor Livingston, July 10, 1822, he says: "I observe with particular pleasure the view you have taken of the immunity of religion from civil government, in every case where it does not trespass on private rights or the public peace. This has always been a favorite doctrine with me."(3)
I have made this opinion exceptionally and laboriously long. I have done so in the hope that I might thereby aid in bringing about a harmony of views and a fraternity of feeling between different classes of society, who have a common interest in a great public institution of the State, which, if managed as sensible men ought to manage it, I have no doubt, will be a principal instrumentality in working out for us what all desire -- the best form of government and the purest system of religion.
I ought to observe that, in our construction of the first named of the two resolutions in question, especially in the light of the answer of the Board, we do not understand that any of the "readers," so called, or other books used as mere lesson-books, are excluded from the schools, or that any inconvenience from the necessity of procuring new books will be occasioned by the enforcement of the resolutions.
It follows that the judgment of the Superior Court will be reversed, and the original petition dismissed. Judgment accordingly. Footnotes: (1) The opinion in this case was rendered by Mr. Justice Welch. Stanley Matthews, since a Justice of the Supreme Court of the United States, and George Hoadley, subsequently Governor of Ohio, were of the counsel for the Board of Education, and delivered clear and effective speeches at the trial of the case before the Superior Court. The defendants had brought their action to the Superior Court of Cincinnati to enjoin the Board of Education from carrying into effect two resolutions adopted by the board, November I, 1869. which read as follows:
"Resolved, That religious instruction, and the reading of religious books, including the Holy Bible, are prohibited in the common schools of Cincinnati, it being the true object and intent of this rule to allow the children of the parents of all sects and opinions, in matters of faith and worship, to enjoy alike the benefit of the common school fund.
" Resolved, That so much of the regulations on the course of study and text-books in the intermediate and district schools (page 213 annual report) as reads as follows:'The opening exercises in every department shall commence by reading a portion of the Bible, by or under the direction of the teacher, and appropriate singing by the pupils,' be repealed."
Two of the judges of the Superior Court, Hagans and Storer, decided in favor of religion in the public schools, and enjoined the board from carrying the foregoing resolutions into effect. The other member of the court, Judge Taft, dissented. The case was then carried to the State Supreme Court, which reversed the decision of the lower court, and wrote a decision which proved of national interest, and justifies its republication, For decision entire, see 23 Ohio State, 211r et seq.
(2) Madison to Edward Everett, March 19, 1823, see page
(3) In the same letter he declared: " We are teaching the world . . . that religion flourishes in greater purity without, than with, the aid of government."
Source of Information: Supreme Court of Ohio. December Term, 1872. The Board of Education of the City of Cincinnati V. John D. Minor et al. American State Papers Bearing On Sunday Legislation, Revised and Enlarged Edition, Compiled and Annotated by William Addison Blakely, Revised Edition Edited by Willard Allen Colcord, The Religious Liberty Association, Washington D.C. 1911, pp 460-469.
19. "What response do you need?" In response to Reply # 16
The man laid it all out, and it comes from the Founding Fathers themselves--the very same group that the right-wing loves to adore to the point of idolatry! And you need to formulate a "meaningful" response? Come now.
The country's founding ethical idealism is based on those given by the God of Abraham and the Judeo/Christian following.. we can SAY that there should be a separation there, but c'mon folks, really... that's impossible for any country to uphold considering virtually all ideas of human common law spark from some sort of religious doctrine